Thursday, December 29, 2005

Filial Devotion - or Forum Shopping to Control Mom's Assets? The Glasser Case

Category: Probate and Estate Administration

A fascinating real life tale of intrigue and twists as a New Jersey resident is whisked away to Texas and her assets, although she is still alive, are being fought over in court by her children - A Family Feud Sheds Light on Differences in Probate Practices From State to State - New York Times:

"Lillian Glasser, by all accounts, never intended to spend her twilight years in Texas. Or her $25 million fortune.

A lifelong New Jerseyan, Mrs. Glasser owned a million-dollar home and a second house in Highland Park, N.J., with her husband Ben, a doctor who died in 2002.

But to the consternation of Mrs. Glasser and the New Jersey authorities, Texas now has a major grip on her life and her money - a consequence of a family feud and anomalies in probate practices from state to state.

After coming to Texas last February to visit her daughter, Mrs. Glasser, now 85 and afflicted with Parkinson's disease and Alzheimer's, fell subject to the Bexar County Probate Court in San Antonio.

Placed under Texas guardianship after her daughter attested that her mother resided there, Mrs. Glasser is largely confined to a gated apartment complex in Alamo Heights, a small city surrounded by San Antonio, under 24-hour care and forbidden to return to New Jersey while a storm of litigation swirls around her. "

Some other interesting facts to add to the pot:

  • Mom's had a limited durable power of attorney that only became effective upon her disability or incompetence. Once the Texas probate court declared her incompetent, daughter was able to access mom's assets, which she did to move into joint name with her and mom (so she will receive them at death) as well as to pay for her children's education.
  • Middlesex County has sued that they have jurisdiction and issued an order at one point when Mrs. Glasser was in New Jersey that she could not leave - daughter "was not notified" of the order and took mom back to Texas
  • Mrs. Glasser says she wants to go back to New Jersey - but as often is the case with seniors, nobody really seems to care to bend to her wishes as quickly as possible

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Wednesday, December 28, 2005

Tis the Time For New Year's Resolutions

Category: Elder Law, Estate Planning, Business Law and Planning, Tax Law and Planning, Financial Planning

Ah, the presents have been opened, you have been eating cookies and leftovers for days, and the commute is remarkably smooth this week - it must be the week before New Years. With each New Year comes New Year's Resolutions - those things you are absolutely and positively going to do in 2006 (or meant to do in 2005 or 2004 - lets be honest). Some thoughts to consider for 2006's list:

  • Don't have a Will, Power of Attorney or Living Will? Get one. Search through prior posts here for some consequences of failing to plan. See the article Make a will: Your #1 family New Year's resolution for more reasons to plan.
  • Have a Will? Haven't looked at it in 5 years or more? Get it out, dust it off, and read it. Does it say what want? Do you understand it? If not, call an attorney and have it reviewed.
  • Own a business? Get a business succession plan in place. Without a business succession plan, your family is likely to receive pennies on the dollar for the value of your business at your death.
  • Got insurance? Review your insurance - health, disability, life, long-term care, property. Are you really covered for your needs? Do you understand your coverage? Have you had your insurance reviewed by a professional in the past 3 years or so? Insurance can be a large annual outlay - you should be sure you are getting the best return for your investment. Most professional insurance agents will give you a free review.
  • Planning to retire? How are you financing your plan? A meeting with a financial planner may give you ideas as to how good of a job you are doing getting to where you want to be. Again, the meeting is likely to be free.
  • Kids going to college? Do you have a plan beyond hoping that there will be enough equity in your house in interest rates stay low? Look into a 529 Plan (try for more information) . See what a financial planner has to say.
  • Have an accountant? Can him or her and make a meeting to discuss your tax profile and ideas to reduce taxes - note that dropping a bag off at the office on April 8 is not a meeting. Your accountant is an expert,particularly with income taxes, those most likely to effect you. Why not take the time to reduce the governments share of your earnings? Call TODAY for last minute year end planning items (see Happy new year! Now, call your accountant )
  • Don't have an accountant? Consider whether a tax professional could help you pay less. You still have time before December 31 to change your tax profile for 2005. (See 5 Year-End Tax Tips and Year-End Tax Tips from ABC News)
  • Have seniors in your family? Consider how they are doing and ways you can help. Would Medicare D save them any money? Go the AARP website for tools to find out the answers. Could they use help with driving, cooking, housekeeping? Consider a service (and speak to your accountant about the tax deductions). Are they safe and secure in their homes? If not, consider alternates within the family and in the community.

None of these thoughts are sexy or exciting, but they do fall under the heading of things a responsible adult should be doing, and items high on this years New Years Resolutions (otherwise known as The Great To Do List).

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Wednesday, December 21, 2005

Senate passes Medicaid Spending Cuts

Category: Elder Law

Cheney Breaks Senate Tie on Spending Cuts - Yahoo! News: "The Republican-controlled Senate passed legislation to cut federal deficits by $39.7 billion on Wednesday by the narrowest of margins, 51-50, with Vice President Dick Cheney casting the deciding vote. "

This will make the Mediciad reductions detailed in this post law. The only question is timing of the enactment.

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Monday, December 19, 2005

House Approves Compromise Budget Bill That Limits on Asset Transfers

Category: Elder Law,


House Approves Compromise Budget Bill That Retains Major New Limits on Asset Transfers

Last Updated: 12/19/2005
Topic: Medicaid

At the close of a rare overnight session, House of Representatives voted 212-206 early this morning to cut $39.7 billion from federal spending. The bill places major new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care. The bill, a compromise between House and Senate budget bills hammered out by Republican leaders, now must be approved by the Senate, an action that could come quickly as lawmakers rush to leave town for the holidays.

The bill retains changes in the transfer rules that were part of the earlier House bill. It would extend Medicaid's "lookback" period for all asset transfers from three to five years and change the start of the penalty period for transferred assets from the date of transfer to "the date on which the individual is eligible for medical assistance under the State plan and is receiving services . . . but for the application of the penalty period, whichever is later. . . ". The bill also would make any individual with home equity above $750,000 ineligible for Medicaid nursing home care.

The House bill would also:

  • Establish new rules for the treatment of annuities, including a requirement that the state be named as the remainder beneficiary.
  • Require Medicaid applicants to provide "full information . . . concerning any transaction involving the transfer or disposal of assets during the previous period of 60 months, if the transaction exceeded $100,000, without regard to whether the transfer or disposal was for fair market value."
  • Allow Continuing Care Retirement Communities (CCRCs) to require residents to spend down their declared resources before applying for medical assistance.
  • Set forth rules under which an individual's CCRC entrance fee is considered an available resource.
  • Extend long-term care partnership programs to any state.

Kirsten Sloan, chief health lobbyist for AARP, said, "AARP strongly opposes the current conference agreement. This is irresponsible policy and will harm millions of low-income Medicaid beneficiaries, millions of older persons who need long-term care and unfairly increases Part B premiums for all Medicare beneficiaries."

For the full text of the Deficit Reduction Act of 2005, click on: Click on the third version of the bill listed, then scroll down to Title III, Chapter 2, for the asset transfer rule changes.

For a Reuters article on House passage of the budget bill, click here.

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Sunday, December 18, 2005

Beware the Snare - State Estate Tax on the Rise

Category: Estate and Inheritance Tax

Rejoice! It is almost 2006, and the federal estate tax exemption will increase from $1.5 million to $2.0 million per person - that is $4.0 per married couple with a tax advantaged estate plan. Hooray! No more taxes! ....

But wait - this is the Federal exemption from estate taxes. What about the State where you live (or own real estate)? 24 States and the District of Columbia have a State level death taxes - which are imposed by the State taxing authority, not the Federal government. Depending on the tax rates imposed by each State, your total "death tax" bill may be going up in 2006, not down.

While the Federal Exemption for Estate tax is $2.0 million, many states have a lower exemption level (including both New Jersey and New York):

If your State is not on this list, should State Estate Taxes still be a concern for you? Yes, if you own real property in any State on these lists. Real property is subject to the estate tax laws of the State in which it is located; all other property is subject to the estate tax laws of the State in which you reside.

$2 Million State Death Tax Exemption:
  • Connecticut
  • Washington

$1 Million State Death Tax Exemption:

  • District of Columbia
  • Kansas
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • New York
  • Oklahoma
  • Oregon
  • Tennessee

$675,000 State Death Tax Exemption:

  • New Jersey
  • Rhode Island
  • Wisconsin

Other State Death Tax Exemptions:

  • Indiana ($100,000 per beneficiary)
  • Nebraska ($10,000 per beneficiary)
  • Ohio ($338,333)
  • Pennsylvania ($3500 per household)

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Friday, December 16, 2005

Business Law and Business Planning Blog References

Category: Business Law and Planning

Some frequently updated Business Law and Business Planning Blogs:

Blawg Republic - Business Law News: An aggregator of recent postings from many excellent business law blogs.

Findlaw Legal News - Business: Agregator of recent news articles (AP, Reteurs, etc.) focusing on business law topics.

Topix.Net - Law News - Business Law: Business Law news continually updated from thousands of sources around the net.

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Monday, December 12, 2005

Crisis in elder care foreseen - USA Today

Category: Elder Law,

As 2006 marks the first baby boomers turning 60, a timely article from USA Today, Crisis in elder care foreseen : "As 1,200 national delegates, policymakers and advocates for the elderly converge on Washington D.C., this week for the fifth White House Conference on Aging, many come with mixed feelings of hope and frustration that, though they've been sounding the alarm for years about a looming crisis in caregiving resources, Washington still doesn't seem to be listening.

The list of concerns includes an increase in Alzheimer's disease, expected to strike up to 16 million Americans by 2025; major shortages of family and professional caregivers; lack of proper housing and transportation for seniors; and shortages of geriatric physicians. Add to that questions about how major entitlement programs such as Social Security and Medicare will be paid for."

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Wednesday, December 07, 2005

Supreme Court Rules -Feds can take Social Security to pay Student Loan Case

Category: Miscellaneous Musings

From Yahoo News - Supreme Court Rules in Student Loan Case:
"The Supreme Court ruled unanimously Wednesday that the government can seize a person's Social Security benefits to pay old student loans.

Retiring Justice Sandra Day O'Connor wrote the decision that went against a disabled man, James Lockhart, who had sued claiming he needed all of his $874 monthly check to pay for food and medication.

His government benefits had been cut by 15 percent to cover debts he incurred for college in the 1980s."

Click for full text of LOCKHART V. UNITED STATES (04-881), 376 F.3d 1027, affirmed.

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The Estate Planning for Pets Foundation

Category: Estate Planning

A resource I was just introduced to - The Estate Planning for Pets Foundation: "This web site is devoted to providing a broad-based information resource for pet owners, and the professionals who assist them, in estate planning for their pets. All too often, pet owners encounter professionals who are directly or indirectly dismissive of their desires to make sure their pets receive adequate care. The underlying assumption behind this web site is that the reader takes the issue of estate planning for pets seriously. "

It includes Frequently Asked Questions, and Legal Resources, including sample language. For many people their pets are their family, and this site lends great assistance to how to plan for the care and comfort of these special family members as part of their testamentary plans.

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Tuesday, December 06, 2005

GOP Senators Reportedly Ready to Hold Firm Against Medicaid Cuts

Category: Elder Law

From, GOP Senators Reportedly Ready to Hold Firm Against Medicaid Cuts - Elder Law Answers Articles:

"Sen. Gordon Smith (R-Ore.) said in a news conference that he would vote against any budget bill that includes cuts to Medicaid and food stamps, and that he believes that six other Republican senators would join him. Whether the changes to the asset transfer rules passed by the House are among the Medicaid provisions the GOP senators would oppose at all costs remains unclear.

Smith, who was instrumental in drafting the Senate bill that makes only relatively mild cuts to Medicaid, was emphatic in his opposition to the Medicaid and food stamp provisions in the House bill. "

See the complete article for more details.

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Monday, December 05, 2005

Thank you Mr. Binger - Single Estate Tax Payment = 1/7 Minnesota's Budget Surplus

Estate Planning, Estate and Inheritance Tax

The State of Minnesota got an unexpected boon this year - to the tune of an unanticipated state estate tax payment of $112 million (note this is just the estate tax payment to Minnesota; the federal estate tax payment would be separate and above). This payment alone put the state into surplus territory for the year - The estate tax payment is so large it equals one-seventh of the state's projected 2006-07 budget surplus of $701 million.

The who's, how's and why's of the situation are sketched below and detailed by the Minneapolis St. Paul Star Tribune:

Who: James Binger, former chairman of Honeywell, theater entrepreneur and onetime part owner of the football Vikings, who died in November 2004 at age 88.

How: Apparently, Mr. Binger intended to be charitably generous with his estate, but to focus on end-of-life medical research, not to necessarily benefit the State. Shortly before his death he changed a $200 million bequest from a private foundation to a long-time business associate and friend.

Why: A private foundation creates a tax deduction; a friend creates a tax liability. The last minute will modification changed his charitable beneficiary from the foundation to the State of Minnesota - whose residence should give thanks to Mr. Binger for his unexpected holiday gift.

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Friday, December 02, 2005

Post-Mortem Planning Taken Too Far - False Estate Tax Return = Jail Time

Category: Estate and Inheritance Tax

Filing a false estate tax return can land you in jail.

From OA Online News, an Odessa Texas attorney, Stephen C. Ashley, took the idea of post-mortem planning in his father's estate a little too far when he created backdated gift deeds falsely reflecting that his father had deeded some of his ranch to his sons before he died, having them falsely executed and notarized.

"�We all own the responsibility to deal with the government honestly,� [Assistant U.S. Attorney John S.] Klassen said. [U.S. District Judge Robert] Junell then sentenced Ashley to two concurrent two-year prison terms for filing a false U.S. Estate Tax Return and unlawfully conspiring to defraud the IRS in its efforts to collect estate taxes. "

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Thursday, December 01, 2005

How TV's CSI got computer forensics wrong

Category: Business Law and Planning, Miscellaneous Musings

Courtesy of the Date Forensics firm of PG Lewis & Associates, LLC:

"Good morning. Below is an amusing and accurate observation which points out that the hit TV show CSI did not follow forensically sound guidelines while investigating a hard drive. The brief piece also describes the procedural error’s implications in court.

How CSI got computer forensics wrong
OUT-LAW News, 17/11/2005

A team of computer forensic investigators has pointed out that a character in a recent episode of hit TV show CSI: Crime Scene Investigation failed to follow a basic rule of looking for evidence: don't switch on the computer.

Experts at CY4OR, based in Bury, England, praised CSI for bringing computer forensics to the forefront of public awareness; but they say it does little to reflect the correct and essential procedures that must be put in place when there is suspicion of criminal activity.

In the offending episode, chemistry boffin Greg Sanders (played by Eric Szmanda) walks on to a crime scene, turns on a nearby computer and begins accessing email. Bad move, says Joel Tobias, Managing Director of CY4OR. This is exactly what budding investigators must not do, he warns.

"Not only could this potentially damage evidence, any incriminating data that was uncovered would undoubtedly be thrown out of a court of law as the proper evidential procedures would not have been put in place," he said. "The evidential continuity would have been compromised and a criminal case could collapse."

The temptation for IT departments to become digital detectives and deal with a breach of security in house is understandable, says Tobias, as companies worry about investor confidence, company reputation and business in general. It can also be fun. However, there are a few basic steps to follow, to minimise exposure and resolve the situation as quickly as possible.

CY4OR's guide to crime scene investigations
1. Treat the matter seriously. Tell your legal team not your colleagues about your suspicions.

2. Do not inform your IT department. Instead, hire computer forensic experts.

Professional analysts from reputable companies adhere to ACPO (Association of Chief Police Officer) guidelines, can identify digital evidence quickly and ensure that it will stand up in court by following the correct procedures. They can even image your computers at night, to avoid inevitable discussions by the water cooler.

The principal of forensics which says that every contact leaves a trace cannot be emphasised enough, says Tobias. "There is a time and a place to leave it to the experts, and this is it," he warned."

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